911 F.2d 882 (3rd Cir. 1990), 89-1694, United States v. Board of Educ. for School Dist. of Philadelphia

Docket Nº:UNITED STATES of America, Appellant in No. 89-1694,
Citation:911 F.2d 882
Case Date:August 09, 1990
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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911 F.2d 882 (3rd Cir. 1990)

UNITED STATES of America, Appellant in No. 89-1694,



and Commonwealth of Pennsylvania.




and Commonwealth of Pennsylvania.


Nos. 89-1694, 89-1740.

United States Court of Appeals, Third Circuit

August 9, 1990

Argued Jan. 31, 1990.

Rehearing and Rehearing In Banc Denied Sept. 12, 1990.

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Michael Baylson, U.S. Atty., James P. Turner, Acting Asst. Atty. Gen., Jessica Dunsay Silver (argued), Linda F. Thome, Attys., Civil Rights Div., Dept. of Justice, Washington, D.C., for U.S.

Ernest D. Preate, Jr., Atty. Gen., Susan J. Forney, Calvin R. Koons, Sr. Deputy Attys. Gen., John G. Knorr, III (argued), Chief Deputy Atty. Gen., Chief, Litigation Section, Office of Atty. Gen., Harrisburg, Pa., for the Com. of Pa.

Sally Akan, Robert T. Lear (argued), School Dist. of Philadelphia, Office of General Counsel, Philadelphia, Pa., for Bd. of Educ. for the School Dist. of Philadelphia.

Amy Adelson, Marc D. Stern, Lois C. Waldman, Jeremy S. Garber, American Jewish Congress, New York City, for American Jewish Congress as amicus curiae.

Robert W. Nixon, Walter E. Carson, Silver Spring, Md., Rolland Truman, Long Beach, Cal., Harold Lance, Ontario, Cal., Lee Boothby, Boothby, Ziprick & Yingst, Berrien Springs, Mich., for Council on Religious Freedom and Americans United for Separation of Church and State as amici curiae.

Before STAPLETON and MANSMANN, Circuit Judges, and ACKERMAN, District Judge [*].


STAPLETON, Circuit Judge:

In this case the United States uses Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., to advance what would more commonly be a free exercise clause challenge (1) the refusal of the defendant Board of Education for the School District of Philadelphia ("Board") to allow a public school teacher to wear religious attire in the course of her duties, and (2) to the Commonwealth of Pennsylvania's "Garb Statute," 24 Pa.St.Ann. Sec. 11-1112, which compelled the Board's action. We conclude that the United States Supreme Court's summary disposition of an appeal from a decision of the Oregon Supreme Court in a case presenting such a free exercise challenge, Cooper v. Eugene School District No. 4J, 301 Or. 358, 723 P.2d 298 (1986), appeal dismissed, 480 U.S. 942, 107 S.Ct. 1597, 94 L.Ed.2d 784 (1987), ultimately compels us to reject the Title VII claim currently before us, although moving from Cooper's free exercise holding to the Title VII claim requires some analysis.

I. Facts

Alima Delores Reardon is a devout Muslim with a religiously held conviction that Muslim women should, when in public, cover their entire body save face and hands. Since 1970, Reardon had from time to time worked as a substitute and full time teacher in the Philadelphia School District, positions for which she held the necessary certificate and other qualifications. Reardon first embraced her religious conviction regarding dress in 1982, and pursuant to her belief "she wore while teaching ... a head scarf which covered her head, neck, and bosom leaving her face visible and a long loose dress which covered her arms to her wrists." District Court Finding of Fact p 5. Apparently Reardon taught in this attire without incident until 1984.

Towards the end of 1984, on three separate occasions Reardon reported to various

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schools for duty as a substitute teacher and was informed by the principals of those schools that, pursuant to state law, she could not teach in her religious clothing. These actions were taken in compliance with what is commonly referred to as Pennsylvania's Garb Statute, enacted in 1895 as Public Law No. 282:

(a) That no teacher in any public school shall wear in said school or while engaged in the performance of his duty as such teacher any dress, mark, emblem or insignia indicating the fact that such teacher is a member or adherent of any religious order, sect or denomination.

(b) Any teacher ... who violated the provisions of this section, shall be suspended from employment in such school for the term of one year, and in case of a second offense by the same teacher he shall be permanently disqualified from teaching in said school. Any public school director who after notice of any such violation fails to comply with the provisions of this section shall be guilty of a misdemeanor, and upon conviction of the first offense, shall be sentenced to pay a fine not exceeding one hundred dollars ($100), and on conviction of a second offense, the offending school director shall be sentenced to pay a fine not exceeding one hundred dollars and shall be deprived of his office as a public school director. A person twice convicted shall not be eligible to appointment or election as a director of any public school in this Commonwealth within a period of five (5) years from the date of his second conviction.

24 Pa.St.Ann. Sec. 11-1112. On each occasion Reardon was given a chance to go home and change; on each occasion she refused to do so and was not allowed to teach. After exhausting her remedies within the school system, Reardon filed charges of discrimination with the district office of the Equal Employment Opportunity Commission ("EEOC").

Upon receiving Reardon's complaint, the EEOC District Office conducted an investigation. During that investigation, the Commonwealth, through its Attorney General, took the position that the Garb Statute was constitutionally valid and enforceable. The EEOC ultimately concluded there was reasonable cause to believe that both the School Board and the Commonwealth had violated Title VII. After pursuing all prescribed conciliation without success, the EEOC transmitted Reardon's charge to the Department of Justice, pursuant to 42 U.S.C. Sec. 2000e-5(f)(1), which requires such referral when the respondent to a charge filed under Title VII is a "government, governmental agency, or political subdivision." The Justice Department then filed a complaint in district court, naming both the Commonwealth and the Board as defendants.

The complaint asserted two theories of liability against the Board: (1) "Failing or refusing to employ as public school teachers individuals who wear or who seek to wear garb or dress that is an aspect of their religious observance," and (2) "[f]ailing or refusing reasonably to accommodate individuals who wear or who seek to wear garb or dress ... that is an aspect of their religious observance and practice." The complaint also asserted that the Commonwealth violates Title VII by "[c]ontinuing to give force and effect to Section 11-1112." In addition, the complaint charged that both defendants engaged in a "pattern of practice of resistance to the full enjoyment by public school teachers or would be public school teachers ... of their right of equal employment opportunities without discrimination based on religion." As discussed below, such an allegation is a necessary condition to obtaining prospective injunctive relief against a discriminatory practice. The United States sought a declaration that the Garb Statute is in conflict with Title VII and therefore unenforceable, as well as injunctive relief and damages.

After a bench trial, the district court entered judgment in favor of the United States and against the School Board, ordering the Board to make Reardon whole and enjoining it from giving any further effect to the Garb Statute. However, concluding that the Commonwealth was not an "employer" of Reardon within the meaning of Title VII, and that in light of evidence that

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the Garb Statute was sporadically enforced there was no "pattern or practice" of discrimination, judgment was entered in favor of the Commonwealth. The United States appeals from that judgment; the Board cross-appeals the judgment against it.

II. The Legal Standards

Title VII directly protects employees from adverse employment actions on the basis of religion:

(a) It shall be an unlawful employment practice for an employer--

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... religion....

42 U.S.C. Sec. 2000e-2(a). The only explicit exception to this prohibition is the narrow exception for "bona fide occupational qualifications." ("BFOQs"). 42 U.S.C. Sec. 2000e-2(e)(1). However, Title VII's definition of religion also contains what may be characterized as an exception:

The term "religion" includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.

42 U.S.C. Sec. 2000e(j) (emphasis added). Thus, perhaps counterintuitively, if an employer cannot accommodate a religious practice without undue hardship, the practice is not "religion" within the meaning of Title VII.

In light of this exception, most Title VII religion cases have turned on the question of whether the employer can demonstrate that it could not accommodate a religious practice without "undue hardship." E.g., Trans World Airlines v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977); Protos v. Volkswagen, 797 F.2d 129 (3d Cir.), cert. denied 479 U.S. 972, 107 S.Ct. 474, 93 L.Ed.2d 418 (1986); Bhatia v. Chevron U.S.A. Inc...

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